Anthony Kennedy’s surprise resignation has many feeling dismayed about what the future holds. The Supreme Court has been overstepping its boundaries since it installed Bush the 2nd into office. There is a constitutional remedy however. Jury nullification is the lost check of the people against government overreaching. Americans are taught that the Constitution was meant to create a system of checks and balances that would prevent tyranny. It is a basic premise in American civics that each branch of government acts as a check on the others. If the system seems out of balance today, it is because America has lost an original check in the balancing act. There is a lost check and that is the power of a jury to return a verdict of not guilty based upon their own moral judgments about the law and its application. This protection, enabling a jury to return a verdict of “not guilty” to nullify a law that it considers to be immoral or wrongly applied is vital.
The founding fathers meant to ensure that the government had to go to 12 citizens every time it intended to relieve another citizen of property or freedom. This has long been a controversial topic in America. It is another radical idea of the founders, because it puts the power to interpret the law into the hands of the 12 average citizens on the jury. These 12 peers are supposed to be able to vote their conscience and decide for themselves whether the law applies or the law is just.
The government has dealt with those who speak of jury nullification by throwing them in jail as was done in Denver in 2015 where two men were arrested and charged with several felonies for handing out pamphlets about juror rights. There are few more effective ways to suppress an idea than to imprison advocates. The charges were eventually dropped due to the Supreme Court precedent supporting the concept in the case SPARF vs US (1895) as well as free speech justifications. One of the keystones of a libertarian-socialist agenda must be the citizen empowerment that jury nullification represents. America’s future rests upon allowing individual citizens to vote their conscience in the courtroom along with Americans willing to step up to shoulder the burdens of citizenship as it relates to checks and balances on justice and the law.
Currently, the levers of government power are in the hands of the wealthy and big business lobbies. The jury room can be a source of change. That is why so much power lines up to try to control jurors. While the power of jury nullification exists, state courts and prosecutors are not required to inform jurors of this power. Of course, judges around the country have routinely forbidden any mention of jury nullification in the courtroom. The power to the people ethos that jury nullification represents requires an incredible amount of tolerance from each American. Freedom is truly a messy, uncontrollable business. The most basic tenet of freedom is expecting and wanting individual citizens to think for themselves.
With jury nullification, Americans need to trust another 12 Americans at least as much as they trust the judge or the prosecution. It is easy for moneyed power to separate Americans with divisive noise and fear mongering. On many different issues, this is the game plan to stymie forward progress. Divide interest groups until support evaporates. Americans will need to tolerate many differing opinions, lifestyles, and religious beliefs to forge an alliance large enough to bring jury nullification into the public forum.
Jury nullification opponents will claim anarchy. Cries from the law-and-order crowd of anarchy and chaos always target the citizenry’s most fearful visions. With the media saturated in numerous flavors of cop shows coupled with endless news cycles of gruesome crimes drawn from all across the country, it is easy to be fearful. Nonetheless, Americans must trust other Americans. It is the United States, so without unity, there is no country.
Jury nullification is not advocating anarchy, but asking the people to fix what politicians, police and courts have failed to fix. Libertarian-Socialism does not advocate anarchy, but it does advocate a society that does not imprison such a huge percentage of its citizens. An overwhelming majority of Americans want the bad guys to go to jail and will put them there, but too many “decent, though flawed” individuals are being put into prisons.
The whole idea behind the American jury system was to allow 99 guilty men to go free before imprisoning one innocent man. This is a political foundation that elevates the individual to the level of the state without compelling reasons to do otherwise. Americans seem to have forgotten how destructive imprisonment is. The founding fathers and the Constitution created a justice system that might free 99 guilty individuals. Such a system is a huge check on government power. Police can arrest people all day, but if they cannot convict them through constitutional means, their power is checked. The power of the central government to impose its will upon the people is limited. Jury nullification is the ultimate check on government power.
Jury nullification means the government should not pass laws that do not have wide support within the population. In fact, jury nullification requires more than 95 percent of the people to agree with a given law for it to be effectively enforced. The 95 percent figure is not just hyperbole, but rather a hard number based upon the jury system put into place by the architects of the United States justice system.
This is how the percentage is arrived at. Given the requirement that a jury of 12 must agree unanimously to provide a guilty verdict, divide 1 by 12, which allows for an 8 percent disagreement percentage. This leads to a 92 percent agreement threshold in the populace for successful implementation of a given law. However, the ability for a citizen to get at least one appeal on any conviction raises the bar. This guaranteed appeal cuts the 8 percent threshold to a 4 percent disagreement threshold with a second trial. That means that ultimately, at least 96 percent of the populace must agree with a law to send individuals to jail under a particular statute.
What an ingenious check on a government’s power to imprison its own people. With the requirement of 96 percent agreement, how could America have become the largest imprisoner of its own citizens? America has an enormous prison population and imprisons more of its citizenry than any other nation by raw numbers and by per capita measurements. For example, the US imprisons 700 people out of 100,000, which is 4 to 5 times the rate of other Western nations.
Private prisons exacerbate this problem through their lobbying. For example, corporate prison money supported efforts to stop Colorado’s marijuana legalization efforts. Clearly, given the large percentage of marijuana offenders in prison, legalization has a direct effect on the bottom line. The prison lobby uses its money to push for ever more draconian laws requiring imprisonment along with opposing any rollbacks to existing mandatory sentencing laws.
Corporations not being actual citizens or people pursue their balance sheets. That means imprison more people if your business is imprisoning people. Americans must keep tabs on the bad guys for sure, but Americans must also keep tabs on those that judge and imprison other Americans. A failure to do so means Americans are imprisoned in large numbers and only with a return of a justice system that allows a juror to vote their conscience can the citizenry roll back laws instituted largely to help corporate prisons to be profitable.
The Rodney King beating and the subsequent trial of the officers involved illustrates how out of balance the justice system has become. The King case was a long time ago, but his words still hang in the air. “Why can’t we all just get along?” Many Americans were dismayed by the acquittal of those officers. The evidence was right there on videotape of what was done to King over 20 years ago. Sure, Rodney King was not a pillar of virtue, but even if he were on PCP, which is arguable, his treatment clearly amounted by the arresting officers to police brutality. The George Holliday tape showed him on the ground and cuffed with multiple officers continuing to deliver blows to an obviously helpless individual. How can that not be police brutality?
A closer examination of the 1992 trial shows the jury is not to blame here. A broken justice system compelled them to deliver the verdict that those in power desired or to be jailed themselves. The Rodney King jury received strict instructions from U.S. District Judge John G. Davies that they could not convict the officers if the Los Angeles Police Department had trained them to beat Rodney King in this manner. Such jury instructions would appear to favor the defense of the officers. Surely, jurors would not believe they could vote their conscience in the face of these instructions.
Perhaps jurors wished to vote their conscience, despite those instructions. Unfortunately, the judge’s strict instructions on the criteria for conviction were in direct conflict with the truth of the power embodied in a real citizen jury. Such narrow jury instructions represent unconstitutional powers conferred upon the judge in an attempt to prevent a juror to think for them self. Contempt of court is a very real threat, and judges have enormous latitude in its application, imprisoning people on the spot if they so choose.
This is why police officers in the 21st century continue to be acquitted time and again for beating and killing citizens. These unconstitutional jury instruction powers allowing judges to define for the jury what criteria they may use to convict has warped the system. For example, if a police officer is trained to beat people then they cannot be convicted is a judge’s opinion, but a juror can use their own criteria. When there is no faith in a system to deliver justice, there is unrest.
Following the police officers’ acquittal, there were riots that on the surface had a racial component. However, the riots were more than the black versus white rioting that the media and government portrayed it as. Many groups of people hit the streets to protest the acquittal. Beyond race, there seemed to be a subconscious desire to send a message to the police. That although the police officers owned the courtroom and made the laws, the streets were still owned by the people in those South Los Angeles neighborhoods.
The Clinton administration came in and retried the case in 1993 before a grand jury. This was a further demonstration of the broken state of the American justice system by violating constitutional protections against double jeopardy. The central government got around double jeopardy restrictions with the torturous logic of claiming that the officers had violated Rodney King’s civil rights. In the end, some police officers were convicted, but there were varying degrees of responsibility assigned to them.
Despite the ultimate outcome, the retrial only made the whole situation worse by failing to address the strict instructions given to the original jurors. The unconstitutional waiving of double jeopardy restrictions to address the unconstitutional jury instructions that judges have been allowed to force upon helpless jurors amounts to attempting to use two wrongs to make a right. This is how judges continue to be allowed to threaten jurors with contempt of court unless they interpret the law as the judge instructs them to.
The path to the unbalanced justice system America has today happened in plain sight and been driven by fear as these things often are. The fear of being victims, the unrest and crime of the mid-twentieth century and the growth of the national security state, have all combined to create this imbalance. The national security octopus is an obstacle everywhere when discussing ideas of individual liberty and is often instrumental in setting precedents in the courts. This role simply cannot be ignored.
In 1989 when George Bush Sr. went into Panama and dragged Manuel Noriega back to the United States for trial, many questioned the legitimacy of such a military action. America’s own international legal experts deemed the military intervention legal, of course, but much of the world was less convinced. This invasion needed a lawful conclusion to be more than simple kidnapping, so Noriega was put on trial for drug trafficking among other crimes.
Unfortunately, for Bush Sr., the American people spoke out in the courtroom. The people questioned the legitimacy of Bush Sr.’s kidnapping of a foreign leader. The reality was that the government could not get a conviction and global opinion of the invasion appeared confirmed by the American jury. To the government’s dismay, the American jury failed to convict Noriega.
The jurors could not agree that Noriega deserved to be imprisoned for the alleged drug trafficking that he was charged with at trial. Some citizens questioned the United States’ interpretation of international law that allowed the invasion of Panama and others questioned the legitimacy of using the military to capture and kidnap a foreign head of state. America’s own system of justice could not and would not convict Noriega.
Apparently, as much of the rest of the world believed this was a violation of international law, it was also a violation of American law, according to America’s own citizen jury. The ambivalence of the citizen jury is understandable, because this is congruent with the first leaks of the CIA’s operations in Central America. The revelations about the Contras being funded by drug smuggling threw into doubt American accusations of drug trafficking by Noriega.
Many critics referenced Noriega’s previous high standing with the American government as an ally in the Drug War. Noriega seemed to be receiving punishment for some transgression in his dealings with the CIA. This was the contention of many within, and outside of American borders. Many were waiting for Noriega to start singing soon, so that a more complete picture of what was going on Central America would be had.
The administration could not stand for Noriega to escape conviction. The United States military had been mobilized to invade a sovereign nation, then captured the duly elected leader of that country, and brought him back to the United States. There had been much international protest over this Christmas Eve invasion, so to be unable to convict the man in an American court would have been an embarrassment for Bush Sr.
Such an outcome was not truly a possibility, though. Once it became clear the jury would not convict, it was marched before a group of government operatives and presented with “secret evidence”. What was the secret evidence that never saw the light of day? We still do not know. We may never know, but once the government had a secret meeting with jurors, the desired outcome was delivered.
Perhaps the government officials simply told the jury that they either convict Noriega or go to jail themselves. The details of the secret evidence are classified, so the actual details of the secret evidence remain unknown. Noriega went to jail, but it was far from a legal trial. After all, it was obviously a case of jury tampering. A constitutional offense, but by then, the government had already largely exempted itself from such mundane constraints as the Constitution and the rule of law.
The above legal precedents have led to the power of juries being seriously curtailed. One of the original intents of the jury system is to ensure a constant vote of the people on the laws and the justice system. To accomplish this, America must address the aforementioned constraints on juror consciences, but more than that Americans must fund jury service. There is no way the average working American can get a jury of his peers. All his peers are average working Americans too and cannot serve without pay.
Too often all a defendant’s true peers are working for companies that do not compensate for jury service. This must change. The federal government, meaning the taxpayers, must fund this essential part of the American justice system for their own protection. Verified by pay stubs and/or tax returns, jury compensation should come somewhere close to an individual’s day to day pay. There has to be a more reasonable recompense for this essential citizen service than what is currently being done.
There will be cries about the expense. Libertarian-Socialism will ignore these objections. All libertarian-socialists will know in their hearts that funding jury service is funding freedom. For the accountants, there is the promise that rolling back the police state could reduce costs related to imprisoning such a large percentage of the populace. Whether it does or does not, the price for freedom is what it is and cannot be had on discount.
The people are an unruly mob in the eyes of many in the halls of money and power. The people are also viewed as dangerous by the one percent. Together the people, the poor, the blue collar, the middle-class, all outnumber the moneyed, the powerful, the wealthy titans of business, and that is why those same titans are constantly beating the drums of fear. Jury nullification represents a true threat to the current power structures in the United States and as such it will be opposed vehemently by many a “responsible” voice.
The moneyed and powerful will invariably go to their default propaganda that the criminals will take over to spark the fear that gives them control. This is the subtle, incessantly whispered drumbeat of television shows like “CSI this” and “CSI that” or “Law and Order this” and “Law and Order that”. It will only be a brave and tolerant citizenry that will be able to resist this drumbeat of fear. Libertarian-Socialists must remind Americans that the criminals have already taken over.
How many women will be convicted of “illegal abortion”, if the Five Robes overturn Roe V. Wade? I submit that NO women will EVER be convicted in the United States as long as juries are free to exercise their consciences, no matter what the Five Robes think. This is the constitutional check on government overreach. The jury box is where justice will be done. Americans must choose to trust each other or continue to keep faith in a justice system that seems unfair and broken.